Battle for election date

The dispute over the date of the next General Election went to the courts on Thursday, with three different dates being proposed.

Attorney General Githu Muigai wants December 2012, Kilome MP Harun Mwau March 2013 and Mugambi Imanyara August next year.

The matter was referred to the Constitutional Court last month by the Supreme Court and was heard for the first time on Thursday by Justices Isaac Lenaola, David Majanja and Mumbi Ngugi.

Mr Mwau, through lawyer Ian Maina, said the transitional clauses in the Constitution provided for election 60 days after the expiry of the term of the current Parliament.

The Kilome MP said he was sworn in on January 15, 2008, therefore, his term should end on January 14, 2013.

“There is no any other formula that can be used to determine the election date apart from that provided in Section 9 of the Sixth Schedule. Elections cannot be held on any other day if all the provisions of the Constitution are read together,” Mr Maina said.

Section 9 of the Sixth Schedule states that the first elections for the President, National Assembly, Senate, County Assemblies and Governors shall be held within 60 days after the dissolution of Parliament at the end of its term.

Mr Mwau said if elections were held in August, MPs should be compensated for the time they should have served in Parliament.

Mr Imanyara, and his co-petitioner Prof Larry Gumbe, said the polls should be held on the second Tuesday in August of every fifth year in accordance with Article 101 of the Constitution.

Through lawyer Nelson Havi, they said this was the only date stated clearly in the Constitution, adding that it could only be changed through a referendum.

Mr Havi said claims by the Independent Electoral and Boundaries Commission chairman Isaack Hassan that it would be impossible to hold elections in August violated the Constitution.

“We cannot wait for the institutions to violate the Constitution to come to court but we want the court to ensure they are stopped before making the mistakes,” Mr Havi said.

He opposed an application by Mr Mwau for MPs to be paid in case elections were held in August, saying that would not be the first time MPs were vacating their seats prematurely.

Prof Muigai asked the bench to consider precedents from other jurisdictions in similar situations.

Through Deputy Solicitor-General Muthoni Kimani, the AG said December was the most practical date.

Final decision

“The court’s final decision should not be arbitrary but balanced to incorporate the views of bodies mandated to organise the next elections,” Ms Muthoni said.

But the parties were in agreement that the President could not dissolve Parliament except in accordance with Article 261 which gives authority to the Chief Justice to advise the President to dissolve Parliament if it fails to enact a legislation.

Mr Havi and Mr Maina termed the move by Justice and Constitutional Affairs Minister Mutula Kilonzo to publish an election amendment Bill an attempt to “hijack the Constitution from the people”.

Mr Havi said only the Judiciary could interpret the Constitution, and the amendment the minister was seeking was illegal unless approved through a national referendum.

Hearing continues on Friday.